Citation Nr: 1623207 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 11-00 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for esophageal stricture. 2. Entitlement to an increased rating evaluation for gastroesophageal reflux disease with Barrett's esophagitis, gastritis, and chronic diarrhea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1983 to January 2004. These matters come before the Board of Veterans' Appeals (Board) from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for stricture of the esophagus, and increased the rating evaluation for gastroesophageal reflux disease with Barrett's esophagitis, gastritis, and chronic diarrhea from zero percent to 10 percent, effective June 30, 2008; and to 30 percent, effective August 18, 2008. The Veteran requested a hearing before the Board on his November 2010 formal appeal. He notified the RO in January 2013 that he was unable to attend the scheduled hearing, and asked that a new hearing be scheduled. A new hearing was rescheduled for February 2015 and then rescheduled again for August 2015. The Veteran did not appear on any of the scheduled hearing dates, but responded to a December 2015 telephone call from the RO and indicated that he no longer desired a hearing. The Board finds that the Veteran has withdrawn his hearing requests. See 38 C F R §§ 3.103, 20.704(e). The issue of entitlement to an increased rating evaluation for gastroesophageal reflux disease with Barrett's esophagitis, gastritis, and chronic diarrhea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has a current diagnosis of esophageal stricture, which is secondary to his service-connected gastroesophageal reflux disease. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for esophageal stricture have been met. 38 U.S.C.A. §§ 101, 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the Board is granting the claim, no further discussion of the duties to notify and assist is necessary. Service Connection Legal Authority In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). To prevail on the theory of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Esophageal Stricture The Veteran contends that he has a current disability manifested by esophageal stricture that is secondary to his service-connected gastroesophageal reflux disease. A November 2008 VA examination noted that, "he feels that he is able to swallow liquids without problem. However, when he takes solid food such as bread sometimes he chokes. He is careful about eating and therefore he does not get the choking episodes very frequently but it does occur occasionally." A January 2009 VA examination did not report any esophageal stricture. The examiner did not review the claims file. The Veteran's treating physician, Dr. R.L.G., submitted an August 2009 statement. She noted that the Veteran has esophageal stricture which is "a debilitating complication and progression of gastroesophageal reflux disease... [The esophageal stricture] is directly caused by the reflux of acid over time on the esophagus... If acid is refluxing into the esophagus severely enough to cause pre-cancerous cellular changes of the esophagus, i.e. Barrett's esophagitis, that is definitely severe enough acid reflux to cause an esophageal stricture. This medical condition is serious and will cause life long anxiety when eating due to unpredictable episodes of choking and emesis." Dr. R.L.G. concluded that it is at least as likely as not that the current esophageal stricture is caused by the gastroesophageal reflux disease. The Board finds that the evidence is at least in equipoise on the question of whether currently diagnosed esophageal stricture is related to service-connected gastroesophageal reflux disease. The Board finds that the opinion of Dr. R.L.G. is probative, as it was based on an accurate factual background, and was based the physician's knowledge of the Veteran's medical history and condition that was obtained during observation and treatment as the treating physician. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The opinion was well reasoned and was based on the physician's medical expertise. Id. Further, the Board finds that the opinion of Dr. R.L.G. is supported by the VA examination findings in November 2008. The Board finds that the opinion of Dr. R.L.G. relates currently diagnosed esophageal stricture directly to service-connected gastroesophageal reflux disease. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for esophageal stricture is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for esophageal stricture is granted. REMAND The Veteran was last provided a VA examination to assess his gastrointestinal issues in January 2009. In the August 2009 statement discussed above, Dr. R.L.G. opines that the Veteran's conditions - gastroesophageal reflux disease with Barrett's esophagitis, gastritis, and chronic diarrhea - are separate and distinct disabilities and should thus be rated separately. She notes that the Veteran is at greater risk for esophageal cancer and thus must undergo periodic endoscopy procedures. VA regulation specifically prohibits assigning separate ratings to his currently diagnosed gastric disabilities. See 38 C.F.R. § 4.113, 38 C.F.R. § 4.14. However, to the extent that Dr. R.L.G. implies that the rating criteria are not adequate to assess the Veteran's particular disability picture, the Board finds that a new examination must be provided to assess the current nature and severity of the conditions, and to assist in determining whether a higher rating is warranted for his conditions on a schedular or extraschedular basis. Private treatment records from October 2010 continue to show that the Veteran has undergone several medical procedures and treatments to control his conditions. More recent treatment records are not contained in the claims file, and should be obtained if available. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain all VA treatment records dated from January 2009 to the present pertaining to the Veteran's claimed conditions. Any such records should then be associated with the claims folder. 2. Attempt to obtain all private treatment records dated from October 2010 to the present pertaining to the Veteran's claimed conditions. Any such records should then be associated with the claims folder. 3. Schedule the Veteran for appropriate VA examinations to evaluate the current severity of his service-connected gastroesophageal reflux disease with Barrett's esophagitis, gastritis, and chronic diarrhea. All indicated tests and studies shall be conducted. The claims folder, including a copy of this remand and any relevant records contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner must review the claims folder and indicate that it was reviewed. The examiner shall report the nature and severity of all manifestations or complications of the Veteran's gastroesophageal reflux disease with Barrett's esophagitis, gastritis, and chronic diarrhea. Specifically, the examiner shall report the nature, severity, and frequency of all signs and symptoms associated with the Veteran's conditions, to include any abdominal distress, diarrhea, constipation, vomiting, weight loss, hematemesis, melena, anemia, pain, severe hemorrhages, or large ulcerated or eroded areas. The examiner shall also indicate the extent to which any symptoms associated with the conditions cause impairment of the Veteran's health (e.g. considerable or severe impairment of health). The examiner should also address the functional impact of the Veteran's gastroesophageal reflux disease with Barrett's esophagitis, gastritis, and chronic diarrhea on his ability to obtain or maintain employment. Specifically, the examiner is asked to discuss the Veteran's contentions that he frequently misses work or needs to be excused during work to use the restroom. The examiner must provide reasons for any opinion given. 4. After completing the above and any additional development deemed necessary, to include submitting the claim for an increased rating for the Veteran's gastric conditions to the Director, Compensation Service, for extraschedular consideration, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case that addresses all relevant actions taken on the claim for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs